Judge denies Hasan's request to toss death penalty

Sig Christenso, Houston Chronicle

By Sig Christenson

Published 12:00 am, Thursday, January 31, 2013

FILE - This undated file photo provided by the Bell County Sheriff's Department shows Nidal Hasan, the Army psychiatrist charged in the deadly 2009 Fort Hood shooting rampage. The new judge in the shooting case will decide next week whether to spare Hasan the death penalty and let him plead guilty. Col. Tara Osborn has set pretrial hearings for Wednesday, Jan. 30, 2013 through Friday. (AP Photo/Bell County Sheriff's Department, File)
Photo: Uncredited, HOPD

FORT HOOD – An Army judge on Wednesday rejected a bid by Maj. Nidal Malik Hasan's military defense team to throw out the death penalty as a possible punishment in his upcoming trial related to the November 2009 rampage here that killed 13 people.

Col. Tara Osborn did it in a businesslike fashion after hearing arguments from both sides and quickly moved onto other issues as the paralyzed Hasan sat silently in his wheelchair wearing a long, scruffy beard, which he grew in violation of Army regulations.

Hasan's beard has been a point of contention for months. The previous judge, Col. Gregory Gross, had ordered Hasan to shave before standing trail. Osborn was appointed after an appeals court removed Gross, whom the court said didn't appear impartial.

Osborn said Wednesday the court did not have the authority to stop Fort Hood command from requiring Hasan to shave before the trial, which could be delayed until summer. Hasan's lawyers have said previously that military law failed to provide constitutional protections that are given in civilian courts. But Maj. Larry Downend, one of three prosecutors, said military defendants had more legal protections civilians, including an evidentiary hearing that allows the defense to get a clear idea of the prosecution's case.

The Supreme Court in 1996 upheld the military's capital punishment process in the case of Pvt. Dwight Loving, a Fort Hood soldier sentenced to death for the 1988 killing of two cab drivers.

Retired Army Lt. Col Geoffrey Corn, a professor at South Texas College of Law in Houston, said the defense appeared to be contending that a review of federal court and commission procedures would show those used in the Loving case are out of date. But the judge, he said, may not have been the primary target of that argument.

"There are not many issues from this case that are going to have even the slightest potential to get before the Supreme Court," Corn said. "The constitutionality of the process for death penalty cases is one of them, just like Loving."